Mark T. Pavkov is a trial attorney and partner at MacDonald Illig. He concentrates his practice in the areas of commercial litigation, employment litigation, and dispute resolution. His experience includes handling complex litigation involving commercial disputes, contract claims, business torts, fiduciary obligation and ADA accessibility claims.
The number of lawsuits filed against businesses for accessibility violations under the Americans with Disabilities Act (ADA) increased by more than 378 percent between 2008 and 2017. Most of those cases involve “traditional” ADA claims regarding accessibility of a site with regard to physical barriers.
In the past few years, however, the number of ADA lawsuits challenging the accessibility of business websites has increased dramatically. More than 2,200 ADA website accessibility lawsuits were filed in 2018, a 181-percent increase over the number of suits filed in 2017, and the number of cases is expected to continue to rise.
Over the span of a few days in March of 2019 alone, in the federal trial court for Pittsburgh and Erie, Pennsylvania, a single plaintiff’s firm filed 20 lawsuits claiming various business websites were not ADA compliant. Other plaintiff’s firms, often from out of state, have sent demand letters to businesses threatening an ADA website lawsuit. So what businesses are at risk for an ADA website accessibility lawsuit, and what is required for a website to be “accessible?”
The ADA’s Application To Websites
Technically, the ADA and its regulations do not expressly address “website accessibility” or provide specific standards for websites. In 2010, the Department of Justice (DOJ) issued a notice indicating it was considering adopting specific ADA standards for websites, but no further regulatory action has occurred, and a final regulation was not adopted.
However, under the ADA, places of “public accommodation,” including hotels, restaurants, retail stores and service establishments, are prohibited from discriminating on the basis of a disability.
To comply with the ADA, businesses that are “public accommodations” must ensure that individuals with disabilities have equal access to their goods and services. A public accommodation must also ensure effective communication with individuals with disabilities, including providing auxiliary aids and services when needed to communicate effectively. Under these more generally applicable ADA standards, both the DOJ and federal courts have found that websites for businesses that are “public accommodations” must be “accessible” under the ADA.
Website Accessibility Requirements
A website is “accessible” under the ADA if it can be accessed and used by individuals with disabilities. For example, an accessible website would include features to allow an individual with a vision impairment to use a screen reader. Accessible website features also include captions for audio or video content and the ability to navigate and function on a website using a keyboard only.
While there are no legal standards for website accessibility that have been formally adopted by law or regulation, both the DOJ and federal courts have taken the position that to be “accessible” websites for businesses subject to the ADA must comply with a set of privately developed standards known as the Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1 AA. These standards and the ADA’s accessibility requirements also apply to a businesses’ mobile apps.
Aim for Compliance
Although there are some legal defenses that may apply in certain situations, often businesses that are facing an ADA website accessibility lawsuit have little defense if their websites are not “accessible.” If hit with litigation, those businesses face liability for plaintiff’s attorneys’ fees, in addition to their own legal defense costs, and the prospect of an injunctive order requiring that their website be made accessible. To minimize the risk of litigation, businesses that are subject to the ADA should take steps to make their websites and mobile apps accessible and compliant with the ADA and the WCAG 2.1 AA standards.
For more information, contact MacDonald Illig Attorneys at 814/870-7600.